Bayana Atchuta Rao vs Tadikonda Pawan Kumar

Subba Reddy Satti, J

Defendant in O.S.No.1134 of 2006 on the file of I Additional Senior Civil Judge, Vijayawada filed the above appeal under Section 96 of the Code of Civil Procedure, 1908.

For the sake of convenience, parties to this appeal are referred to as they were arrayed in suit.

Plaintiff filed the suit O.S.No.1134 of 2006 against the defendant for recovery of amount on the strength of promissory note dated 15.11.2003.

In the plaint, it was contended inter alia that on 15.11.2003 defendant borrowed an amount of Rs.2,50,000/-from the plaintiff for his business purpose and executed a promissory note on the even date. Defendant promised to pay the interest @24% p.a. with yearly rests. Since the date of execution of promissory note, defendant did not pay the amount and despite demanded by the plaintiff, defendant is postponing the repayment. On 07.11.2006, plaintiff got issued a registered notice through his counsel. Defendant got the notice returned and failed to repay the amount. Hence, suit is filed for recovery of an amount of Rs.4,29,700/-.

Defendant filed written statement and contended inter alia that he did not borrow the amount on 15.11.2003; that there is no privity of contract between the plaintiff and defendant as creditor and debtor; that defendant did not receive any notice from the plaintiff; that the attestors and scribe are henchmen of plaintiff; that defendant did fruit juice stall business in shop No.26, Kaleswara Rao Market, Vijayawada during February, 1996 to August, 1996 and wind up the business; that later he did sweets shop business in the same shop during the year 1996 to 2000; that the plaintiff worked as clerk in the shop of defendant on a monthly salary of Rs.3,000/-; that defendant also wind up the said business, since he sustained loss; that the plaintiff requested the defendant to give the shop on lease at Rs.175/- per day and paid Rs.25,000/- as advance for the shop; that the defendant accepted for the proposal and handed over the shop to plaintiff along with furniture and stock; that Vijayawada Municipal Corporation seized the shop on 16.07.2002 on the ground that lessee sublet the premises to the plaintiff unauthorizedly; that with great difficulty defendant got orders from the Municipal Corporation to open the shop and he settled the lease amount with plaintiff and handed over the shop; that the suit promissory note is fabricated one; that the plaintiff has no capacity to lend Rs.2,50,000/- and eventually prayed to dismiss the suit.

Basing on the pleadings, the trial Court framed the following issues:

(1) Whether the suit promissory note dated 15.11.2003 is true, valid and binding on the defendant?

(2) Whether the plaintiff is entitled for recovery of suit amount as prayed for?

(3) To what relief?

During trial, plaintiff examined himself as P.W.1, got examined one of attestors as P.W.2 and scribe as P.W3. Exs.A-1 to A-3 were marked. On behalf of defendant, he examined himself as D.W.1 and got examined D.Ws.2 and 3. Exs.B-1 to B-3 were marked.

The trial Court on consideration of both oral and documentary evidence, decreed the suit with costs by judgment and decree dated 14.06.2010. Aggrieved by the same, the above appeal was filed.

Heard Ms.Sailaja, learned counsel, representing Sri V.S.R.Anjaneyulu, learned counsel for appellant and Sri S.Sharat Babu, learned counsel for the respondent.

Learned counsel for the appellant would contend that Ex.A-1 is fabricated document and the plaintiff failed to prove passing of consideration under Ex.A-1. She would further contend that there are number of discrepancies in the evidence of P.Ws.2 and 3 and in fact, P.W.2 and P.W.3 are close associates of P.W.1. She would submit that I.A.No.503 of 2009 filed on 19.08.2009 under Section 45 of the Indian Evidence Act was kept pending for some time and later it was dismissed. She further submits that the opinion of the handwriting expert is not a conclusive proof and eventually prayed to allow the appeal.

Learned counsel for respondent supported the judgment of the trial Court.

Basing on the pleadings and evidence, the following points arise for consideration in this appeal:

1) Whether the suit promissory note dated 15.11.2003 is true, valid and binding on the defendant?

2) Whether the plaintiff proved the passing of consideration under Ex.A-1?

3) To what relief?

Since the points 1 and 2 are inter-connected, this Court deems it appropriate to deal with the same together.

Pleaded case of the plaintiff is that defendant borrowed an amount of Rs.2,50,000/- on 15.11.2003 and agreed to pay the same with interest @ 24% p.a. with yearly rests. Since the defendant failed to repay the amount, he got issued registered notice dated 7.11.2006 and the same was marked as Ex.A-2, however, the same was returned. Hence, the plaintiff filed the suit.

Defendant filed written statement and pleaded multifold defenses. According to defendant, Ex.A-1 is forged document, plaintiff had no capacity to lend the amount and attestors and scribe are henchmen of the plaintiff.

To prove the execution of Ex.A-1, plaintiff examined himself as P.W.1 and got examined one of the attestors as P.W.2 and scribe as P.W.3. Promissory note is not a compulsorily attestable document. Plaintiff apart from examining himself as P.W.1 also examined P.Ws.2 and 3 attestor and scribe. The evidence of P.Ws.1 to 3 is consistent with regard to execution of Ex.A-1 and also passing of consideration. A perusal of cross examination of P.W.1 to P.W.3, nothing contra was elicited.

Defendant having pleaded forgery, filed I.A.No.40 of 2008 under Section 45 of the Indian Evidence Act to send the promissory note to handwriting expert to compare signature. On examination, the expert sent his report and opined that signature appearing on Ex.A-1 and admitted signatures of defendant are one and the same. Report was filed before the Court, however, defendant did not examine the expert. Curiously, defendant filed one more application I.A.No.503 of 2009 to send Ex.A-1 to handwriting expert and the same was dismissed on 02.06.2010. Though the opinion of the hand writing expert is not conclusive proof, evidence of P.Ws.1 is clear and cogent regarding execution of Ex A-1 and passing of consideration. Evidence of P.W.2 and P.W.3 is corroborating with evidence of P.W.1 regarding execution of Ex.A-1 and passing of consideration. Apart from evidence of P.W.1 to P.W.3 handwriting expert also opined that the signature on Ex A-1 belonged to defendant. Thus this court is of the opinion that Ex A-1 promissory note is true and valid and consideration is passed under Ex A-1.

According to defendant, because of disputes plaintiff fabricated Ex A-1. However, he deposed when the promissory note is executed and the dispute regarding lease of shop was settled. In view of the evidence of D.W.1, when there are no disputes between the plaintiff and defendant and further there is no positive evidence let in by defendant to prove that Ex.A-1 is fabricated this Court is of the opinion that Ex.A-1 is not fabricate one. Exs.B-1 to B-3 issued by the Vijayawada Municipal Corporation, will not benefit the case of defendant.

In the light of the above discussion, there are no merits in the appeal and hence, the appeal is liable to be dismissed.

Accordingly, the appeal suit is dismissed with costs.

As a sequel, all the pending miscellaneous applications shall stand closed.